Ministry
of Finance & Anr Vs. S.B. Ramesh [1998] INSC 43 (2 February 1998)
K. Venkataswami,
A.P. Misra K.Venkataswami. J.
ACT:
HEAD NOTE:
The
appellants impugn the order of the Central Administrative Tribunal, Hyderabad
Bench, dated 9.8.94 in O.A. No.27/94.
Before
proceeding to consider the issues, we want to observe the following:
This
Court while granting special leaven on 28.2.95 expedited the hearing of the
appeal and directed the counsel to complete the paper books within ten weeks.
In spite of passing of nearly three years after the leave was granted, no steps
have been taken to complete the paper books and we have to go only by order of
the Tribunal. In the SLP paper book, only a copy of the judgment of the
Tribunal, apart from the special Leave Petition and the Counter Affidavit filed
by the appellant before the Tribunal. Is available and no other documents were
included. Hence, leave was granted by this Court to complete the paper book.
Even then the appellants did not care to avail the opportunity.
Now on
merits.
The
respondent in this appeal was working as an Income Tax Officer, Group `B',
during the relevant period. He was proceeded departmentally by filing a
charge-sheet dated 7.5.87 for alleged irregularities in the income-tax
assessment. For reasons with which we are not concerned, that was not pursued
after certain stage dater on, the respondent was served with another
charge-sheet dated 25.3.88. The article of charge reads as follows:- "Shri
S.B. Ramesh. Income Tax Officer. Group-B. Andhra Pradesh (now under suspension)
has contracted a second marriage with Smt. K.R. Aruna while his first wife. Smt.
Anusuya is alive and the first marriage has not been dissolved. By this act, Shri
S.B. Ramesh has violated Rule 21(3) of CCS (Conduct) Rules. 1964. In any case, Shri
S.B. Ramesh has been living with Smt. K.R.Aruna and has children by her.
Thereby Shri S.B. Ramesh has exhibited a conduct unbecoming of a Government
servant and has accordingly violated rule 3(1) (iii) of the CCS (Conduct) Rules
1964." As the respondent denied the charge, an Enquiry was conducted in
which the respondent did not participate. The Report of the Enquiry Officer was
to the effect the first part of the charge was not proved and that the second
part of the charge, namely, that the respondent, by living with Smt. K.R. Aruna
and having children by her, Exhibited a conduct unbecoming of a Government
servant violating Rule 3(1) (iii) of CCS (Conduct) Rules, 1964 was established.
This
report of the Enquiry Officer was accepted by the Disciplinary Authority, who
by his order dated 23.4.92 imposed on him the punishment of compulsory
retirement from service. Aggrieved by that, the respondent preferred an appeal
on 4.6.92 which was kept pending without disposal for an unduly long time which
obliged the respondent to file an application before the Tribunal challenging
the punishment of compulsory retirement.
Before
the Tribunal, the respondent challenged the order of compulsory retirement by
contending that the Enquiry has not been held unconformity with the principles
of natural justice, that the findings of the Enquiry Authority, which were
acceded by the Disciplinary Authority, were all absolutely perverse and based
on no evidence and that sub-rule (18) of rule 14 of the CCS (CCA) Rules was not
complied with. It also appears that the respondent raised a preliminary point
before the Tribunal contending that his conduct, which has no relation to the
discharge of official duties, cannot form a basis for departmental proceedings
to charge him under rule 3(1)(iii) of the Conduct Rules. This as without merit
in the light of a judgment of this Court The argument advanced on behalf of the
appellants before the Tribunal were to the effect that all resonable
opportunity was given to the delinquent officer and all rule shave been
followed and complied with. According to the learned counsel for the
Department, the findings rendered by the Enquiry Officer, accepted by the
Disciplinary Authority, were all based on evidence and, therefore,
well-founded.
The
Tribunal, on a consideration of the pleadings and documents placed before it,
found that the findings were rendered on surmises and presumptions and the
documents marked as exhibits were not properly proved and the non- examination
of Smt. Aruna was also fatal to the case of the prosecution. The Tribunal was
aware of the well settled position that the degree of proof required in the
departmental disciplinary proceedings need not be of the same standard as the
degree of proof required for establishing the guilt of an accused in a criminal
case.
However,
the Tribunal found that there was a total dearth of evidence to bring home the
charge that the delinquent Officer has been living in a manner unbecoming of a
Government servant or that he has exhibited adulterous conduct by living with Smt.
K.R. Aruna and begetting children. On that basis the Tribunal set aside the
order impugned before it, namely, the order of compulsory retirement of the
delinquent officer. The Tribunal could have rested its decision on the basis of
the conclusion as set out above. Instead the Tribunal, purporting to give
additional reason, inter alia, observed as follows:- "Though it would be
ideal if sexual relationship is confined to legal wedlock, there is no law in
our country which makes sexual relationship is confined to legal wedlock, there
is no law in our country which makes sexual relationship of two adult
individuals of different sex.
unlawful
unless the relationship is adulterous or promiscuous. If a man and woman are
residing under the same roof and if there is no law prohibiting such a
residence, what transpires between them is not a concern of their employer.
Such a life, if accepted by the society at large, without any displeasure or
grudge, then it cannot be said that there is any moral turpitude involved in
their living in this case, there is no case that on amount of the applicant
living with Smt. K.R. Aruna, his reputation among the general public has been
lowered or that, the public has been looking down on his conduct as immoral
one, Therefore, even if factually, the allegation that the applicant who is
already married to another woman is living with Smt. KR Aruna is proved to be
true, we are of the considered view, that, that alone will not justify a
finding that the applicant is guilty of misconduct deserving departmental
action and punishment." Immediately we prefer to record our total
disapproval with the above observations of the Tribunal. We propose to deal
with and rest our decision on the merits with reference to the findings of the
Tribunal rendered on the basis of the facts relating to the case.
Against
the order of the Tribunal which set aside the punishment of compulsory
retirement, this appeal has been filed.
The
learned counsel appearing for the appellants placed strong reliance on the
latter part of the judgment of the Tribunal, extracted above, which related to
additional/alternative reason given by the Tribunal to its decision. We have
already expressed our disapproval to the later part of the judgment of the Tribunal.
We
must observe that no serious attempt was made by the learned counsel for the
appellants to attack the findings of the Tribunal rendered in the first part of
the judgment. The respondent. who appeared in person. presented his case by
pointing out the portions of in the first part of the judgment of the Tribunal
and also placed his written arguments.
It is
necessary to set out the portions from the order of the Tribunal which gave the
reasons to come to the conclusion that the order of the Disciplinary Authority
was based on no evidence and the findings were perverse. The Tribunal, after
extracting full the evidence of SW-1. the only witness examined on the side of
the prosecution. and after extracting also the proceedings of the Enquiry
Officer dated 18.6.91. observed as follows:- "After these proceedings on
18.6.91 on the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the
Enquiry Officer has not attempted to question the applicant on the evidence
appearing against him in the proceedings dated 18.6.91. Under Sub-Rule 18 of
Rule 14 of the CCS (CCA) Rules. It is incumbent on the Enquiry authority to
question the officer facing the charge, broadly on the evidence appearing
against him in a case where the officer does not offer himself for examination
as witness. This mandatory provision of the CCS (CCA) Rules has been lost sight
of by the Enquiry authority. The learned counsel for the respondents argued as
the applicant did not appear in response to notice. It was not possible for the
Enquiry authority to question the applicant. This argument has no force
because. on 18.6.91 when the inquiry was held for recording the evidence in
support of the charge, even if the Enquiry officer has set the applicant ex-parte
and recorded the evidence, he should have adjourned the hearing to another date
to enable the applicant to participate in the enquiry hereafter/or even if the
inquiry authority did not choose to give the applicant an opportunity to
cross-examine the witness examined in support of the charge, he should have
given an opportunity to the applicant to appear and then proceeded to question
him under sub-rule 18 of Rule 14 of CCs (CCA) Rules. The omission to do this is
a serious error committed by the enquiry authority. Secondly, we notice that
the enquiry authority has marked as many as 7 documents in support of the
charge. while SW-1 has proved only one document: namely, the statement of Smt.
K.R. Aruna alleged to have been recorded in his presence. How the other
documents were received in evidence are not explained either in the report of
the Enquiry authority or in the proceedings. Even if the documents which were
produced along with the charge sheet were all taken on record. unless and until
the applicant had requested the Enquiry officer to mark certain documents in
evidence on his side.
the
enquiry authority had no jurisdiction in marking all those documents which he
had called for the purpose of defending himself on the side of the applicant
while he has not requested for making of these documents on his side. It is
seen that some of these documents which is marked on the side of the defence
not at the instance of the applicant. has been made use of by the enquiry
authority to reach a finding against the applicant. This has been accepted by
the disciplinary authority also. We are of the considered view that this is
absolutely irregular and has prejudiced the case of the applicant. These
documents, which were not proved in accordance with law should nor have been
received in evidence and that, any inference drawn from these documents is
misplaced and opposed to law, we further find that the enquiry authority as
well as, the disciplinary authority have freely made use of the statement
alleged to have been made by the statement alleged to have been made by Smt Kr Aruna
in the presence of SW1 and it was on that basis that they reached the
conclusion the applicant was living with Smt. K.R. Aruna and that, he was the
father of the two children on Smt. K.R. Aruna. The S.W.1 in his deposition
which is extracted above, has not spoken to the details contained in the
statement of Smt. K.R. Aruna which was marked as Ex.1. Further it is settled
law that any statement recorded behind the back of a person can be made use of
against him in a proceeding unless the person who is said to have made that
statement is made available for cross-examination, to prove his or her
veracity. The disciplinary authority has not even chosen to include Smt. K.R. Aruna
in the list of witnesses for offering her for being cross-examined for testing
the veracity of the documents exhibited at Ex.1 veracity of the documents
exhibited at Ex.1 which is said to be her statement.
Therefore,
we have no hesitation in coming to the conclusion that the enquiry authority as
well as, the disciplinary authority have gone wrong in placing reliance on Ex.1
which is the alleged statement of Smt. K.R. Aruna without offering Smt. K.R. Aruna
as a witness for cross-examination. The applicant's case is that the statement
was recorded under coercion and duress and the finding based on this statement
is absolutely unsustainable as the same is not based on legal evidence. The
other documents relied on by the Enquiry authority, as well as by the
disciplinary authority for reaching the conclusion that the applicant and Smt.
K.R. Aruna were living together and that they have begotten two children have
also been not proved in the manner in which they are required to be
proved." Then. again after extracting the relevant portions from the
disciplinary authority's order, the Tribunal observed as follows:- "We
have extracted the fore-going portions from the order of the disciplinary
authority for the purpose of demonstrating that the disciplinary authority has
placed reliance on a statement of Smt. K.R. Aruna. without examining Smt. K.R. Aruna.
without examining Smt. Aruna as a witness in the inquiry and also on serval
documents collected from somewhere without establishing the authenticity
thereof to come to a finding that the applicant has conducted himself in a
manner unbecoming of a Government servant. The nomination form alleged to have
been filed by Sri Ramesh for the purpose of Central Government Employees'
Insurance Scheme, was not a document which was attached to the memorandum of
charges as one on which the Disciplinary Authority wanted to rely on for
establishing the charge. This probably was one of the documents which the
applicant called for, for the purpose of cross-examining the witness or for
making proper defence. However, unless the Government servant wanted this
document to be exhibited in evidence, it was not proper for the Enquiry
Authority to exhibit it and to rely on it for reaching the conclusion against
the applicant.
Further,
an inference is drawn that S.B.R.Babu mentioned in the school records
(admission registers and Sh.Ramesh mentioned in the Municipal records was the
applicant, on the basis of a comparison of the hand-writing or signature or
telephone numbers are only guess work. which do not amount to proof even in a
disciplinary proceedings. It is true that the degree of proof required in a
departmental disciplinary proceedings, need not be of the same standard as the
degree of proof required for establishing the guilt of an accused in a criminal
case.
However,
the law is settled now that suspicion, however strong, cannot be substituted
for proof even in a departmental disciplinary proceeding. Viewed in this
perspective we find there is a total dearth of evidence to bring home the
charge that the applicant has been living in a manner unbecoming of a
Government servant or that, he has exhibited adulterous conduct by living with Smt.
K.R.Aruna and begetting children." On a careful perusal of the above
findings of the Tribunal in the light of the materials placed before it. we do
not think that there is any case for interference, particularly in the absence
of full materials made available before us in spite of opportunity given to the
appellants.
On the
facts of this case, we are of the view that the departmental Enquiry conducted
in this case is totally unsatisfactory and without observing the minimum
required procedure for proving the charge. The Tribunal was, therefore,
justified in rendering the findings as above and setting aside the order
impugned before it.
In the
result, the appeal fails and is dismissed accordingly with no order as to
costs.
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